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EQUALITY OF REPRESENTATION AS AMONG THE PRINCIPAL CAPITULATORY POWERS ON THE MIXED COURTS OF EGYPT
883.05/375 : Telegram
WASHINGTON, February 3, 1931–4 p. m. 15. Your 13, January 27, noon. At the time of the official announcement of the appointment of an additional French judge to the Mixed Court judiciary, please present a note to the Minister for Foreign Affairs substantially as follows: 8
"On several occasions during recent years my Government has had occasion to express to the Royal Egyptian Government its interest in favor of a return to the principle of equality of representation as among the principal capitulatory Powers on the Mixed Court judiciary. The last of these occasions was on April 18, 1929, when my predecessor, in a note to the Egyptian Minister for Foreign Affairs, set forth in considerable detail my Government's viewpoint on this question.
The subsequent action of the Egyptian Government in appointing an additional American judge to the Mixed Court of First Instance at Cairo was particularly gratifying to my Government, which interpreted this appointment as indicative of the Egyptian Government's intention to bring about an early realization of the principle of equality of representation among the principal capitulatory Powers.
That it is the intention of the Egyptian Government to bring about a return to this principle is now further indicated by the recent announcement of the appointment of an additional judge from among the nationals of one of the principal capitulatory Powers which in recent years has not been equally represented on the Mixed Courts.
In reaffirming my Government's position with respect to the principle of equality of representation, I have been instructed to express my Government's confidence that the Egyptian Government will continue to apply this principle in future appointments in order that American representation on the Mixed Court judiciary may soon be brought to a parity with that of the other principal capitulatory Powers."
* For correspondence on the regime of the Mixed Courts, see Foreign Relations, 1929, vol. II, pp. 936 ff.
After the note has been presented you may, if you perceive no objection, show a copy thereof in strict confidence to your French colleague.
The Egyptian Minister for Foreign Affairs (Yehia Pasha) to the
American Minister in Egypt (Jardine)"
[Translation] No. 29/7/1 (45)
CAIRO, June 1931. MR. MINISTER: I have the honor to acknowledge the receipt of the Note dated March 3, 1931," by which Your Excellency was good enough, in referring to a former note, dated April 18, 1929, addressed to His Excellency Mohamed Mahmoud Pasha, then Prime Minister and Minister for Foreign Affairs, ad interim, to express again the interest which the Government of the United States attaches to the question of the representation of the principal Capitulatory Powers on the bench of the Mixed Courts.
The Note above mentioned of April 18th, having been forwarded upon the occasion of the proposals for the modification of the Judicial Organization of the Mixed Courts, made by the Government of His Majesty the King in December 1927,9 and October 1928, and the realization of these proposals not having been followed up since then, it resulted that this Ministry has not again expressed, following this note, the point of view of the Egyptian Government on this question.
But the last Note of Your Excellency, of March 3, 1931, indicating that the Government of the United States would be inclined to interpret the relatively recent nomination of a judge of American nationality to the Cairo Court, and that which has just occurred, of a judge of French nationality to the Mansourah Court, as the expression of an intention of the Egyptian Government to arrive at an equal representation of the principal Capitulatory Powers, I take the liberty of again explaining the point of view of the Government of His Majesty the King. Apart from the arrangements admitted with certain powers to select from among their nationals a certain number of judges, Egypt remains entirely free to choose the judges called to fill the supplementary seats.
* Copy transmitted to the Department by the Minister in Egypt in his despatch No. 196, June 11; received July 2.
File translation revised. See supra.
See circular note of the Egyptian Minister of Foreign Affairs dated December , 1927, Foreign Relations, 1928, vol. , p. 747.
See note of the Egyptian Minister for Foreign Affairs to the American Minister dated October 28, 1928, ibid., p. 767.
The letter of Sir Henry Elliot of May 26, 1873,10 to which reference is made in the Note of April 18, 1929, constitutes only an episode in the long negotiations which preceded the establishment of the Mixed Courts and during the course of which various opinions were expressed at certain times, by one or another of the States taking part in these negotiations. The opinion expressed in this letter by the representative of Great Britain was never shared in by the Khedivial Government. Furthermore, it is shown by the convention entered into between Egypt and Great Britain on July 31, 1875,11 for the establishment of the Mixed Courts that the above-mentioned letter formed no part of this convention and was not mentioned therein.
On the other hand, according to the opinion of the Government of His Majesty the King, “to avoid giving a preponderance of one nationality over another in the choice of judges”, following the terms employed by Sir Henry Elliot according to the citation from his letter made in the Note of April 18, 1929, is not equivalent to applying the principle of equality in the number of judges of each nationality.
Such a rule would be of a nature to embarrass considerably the Egyptian Government in the composition of the Mixed Courts according to needs and circumstances, and would greatly hamper it in the proper administration of justice.
Finally, in stating that it has no agreement in this respect, the Government of His Majesty the King considers that there does not exist at the present time, nor has existed at any time, the preponderance, envisaged in the phrase of Sir Henry Elliot, in the mixed judicial corps, to the benefit of a particular nationality. Accept [etc.]
The Secretary of State to the Minister in Egypt (Jardine) No. 108
WASHINGTON, October 28, 1931. Sir: The receipt is acknowledged of your despatch No. 196 of June 11, 1931,12 regarding the equality of representation of the principal capitulatory Powers on the Mixed Courts of Egypt.
The Department has studied with interest your analysis of the position of the different capitulatory Powers in this matter and has given careful consideration to your recommendations as well as to the recommendations made by Judge Crabitès in his communication of June 9, 1931,18 addressed to Mr. Childs. It is desired that you seek
an early occasion to express to Judge Crabitès the appreciation of the Department for his continued helpfulness and advice.
The Department cannot, of course, acquiesce in the reply of the Egyptian Minister for Foreign Affairs to your note of March 3, 1931. On the contrary, since the Department is convinced that the right of the United States with respect to representation on the Mixed Courts of Egypt is equal to that of any of the principal capitulatory Powers, it desires that every proper effort be made with a view to insuring the due recognition of that right, subject to the qualification hereinafter indicated growing out of the special interest of Great Britain in Egypt. The Department, however, concurs in your suggestion that before any further communication on the subject is addressed to the Egyptian Government an effort should be made to enlist the support of the Residency in favor of the position of this Government.
It is realized that such support probably could not be obtained if the British authorities felt any apprehension that the position of the United States might indicate an intention on the part of this Government to question the preponderance of British representation on the Mixed Courts. You are, therefore, authorized to request an audience with the High Commissioner and to advise him, informally and orally, that the American position involves no such intention but contemplates American representation on the Courts equal to that of the principal capitulatory Powers other than Great Britain. At the same time you should express the hope that the High Commissioner will use his good offices with a view to insuring the due recognition of the position of the United States and preventing a further departure from the principle of equality of representation on the Mixed Courts. In this connection you will point out the importance which this Government attaches to the appointment of another American judge prior to the appointment of any additional non-British judges.
In view of the possible transfer to the Mixed Courts of criminal jurisdiction over capitulatory nationals, you will doubtless also find it advisable, during the course of your conversations, to allude to the evident desirability, from the point of view of British as well as American interests, of increasing the representation on the Mixed Courts of countries whose systems of law are based upon or developed from the English Common Law.
If you consider it desirable you may furnish the High Commissioner with copies of such of the correspondence exchanged with the Egyptian authorities on this subject as have not previously been made available to the Residency. In order that the British Foreign Office may be informed of the views of this Government on this question a copy of this instruction, as well as copies of your despatch under acknowledgment and of other pertinent documents, is being trans
mitted to the Embassy at London. At the same time the Embassy is being instructed to acquaint the Foreign Office with the essential circumstances which have made it appear desirable to bring this matter again to the attention of the Residency. You may, if you consider it advisable, inform the High Commissioner of these facts.
Upon receipt from the High Commissioner of a reply to your request for his support in this matter it is desired that you inform the Department by telegraph of the substance thereof together with your suggestions as to the character which further representations to the Egyptian Government should assume. Very truly yours,
For the Secretary of State:
W. R. CASTLE, JR.
The Chargé in Great Britain (Atherton) to the Secretary of State No. 2395
LONDON, November 16, 1931.
[Received November 28.] SIR:I have the honor to refer to the Department's instruction No. 980 of November 5, 1931,15 with respect to United States representation on the Mixed Courts of Egypt, and to state that, in compliance with the Department's instruction, an appointment was sought to discuss this question with the Foreign Office, when it was suggested that the question should be taken up directly between the Embassy and Mr. Peterson, head of the Division of Egyptian Affairs.
With the end in view to assuring recognition of the position of the United States and preventing a further departure from the principle of equality of representation, I took occasion to set forth the American attitude at some length. Mr. Peterson said he had at one time been in Egypt with Lord Lloyd and was not wholly unfamiliar with the matter, and added that certain considerations had been urged on the Residency at one time that those nations having a larger population resident in Egypt were entitled to special consideration as to the number of their nationals appointed to the Mixed Courts. I replied I felt certain that such a view would not be acceptable to my Government, and pointed out that strict adherence to the principle of equal representation among the principal capitulatory Powers participating in the Mixed Courts of Egypt had been laid down when the adherence of the United States Government was given to the judicial reform in Egypt in 1876.16 Mr. Peterson agreed to this and stated it was merely an observation from memory he was making, and that he was entirely ready to write to the High Commissioner at Cairo